Академический Документы
Профессиональный Документы
Культура Документы
AUG 11 2003
PATRICK FISHER
Clerk
GEORGE E. RAINEY,
Plaintiff-Appellant,
v.
L. E. BRUCE, Warden, Hutchinson
Correctional Facility; C. SIMMONS,
Secretary of Corrections;
W. CUMMINGS, Designated
Secretary of Corrections; ROBERT
HANNIGAN, Former Warden,
Hutchinson Correctional Facility;
ROBERT W. GARWOOD, Unit Team,
East Unit Hutchinson Correctional
Facility; (NFN) OSHEA, Chaplain,
Hutchinson Correctional Facility;
C. RUDICOL, Unit Team, Hutchinson
Correctional Facility, all sued in civil
and state capacities,
No. 02-3003
(D.C. No. 00-CV-3287-GTV)
(D. Kan.)
Defendants-Appellees.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
George E. Rainey, a Kansas state inmate, filed a 42 U.S.C. 1983 civil
rights complaint against individual prison officials. The district court dismissed
his complaint under 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief may be granted. He appeals that dismissal. Since he is pro se, we
liberally construe his filings,
(per curiam); Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998). Our
jurisdiction arises under 28 U.S.C. 1291. This appeal is frivolous and we
dismiss it. 28 U.S.C. 1915(e)(2)(B)(i).
The district court permitted Mr. Rainey to proceed
Corr. , 165 F.3d 803, 806 (10th Cir. 1999). In short, but comprehensive orders,
with which we agree but do not repeat, the district court systematically and
correctly evaluated Mr. Raineys claims.
-2-
In his district court filings, Mr. Rainey argued that he missed a single towel
exchange because he was using his wood-working materials; he was not provided
toilet tissue on one occasion; his wood-working materials were seized pursuant to
an investigation of the arts and crafts items he had made; he was terminated from
a work assignment and subjected to false charges more than two years before he
filed his complaint; and he was subjected to verbal abuse on one occasion.
Finally, he argued he was denied his religious diet (1) in 1998, but it was
reinstated after he completed a religious accommodation form; (2) on February 9,
1999, for one meal, when a corrections officer briefly retained his identification
card which was marked to show his dietary requirements; and (3) on May 23,
1999, for which he failed to show exhaustion of administrative remedies. The
district court decided the religious diet claim, which showed at most a de minimis
intrusion, failed to state a claim for relief; the verbal abuse claim also failed to
state a claim for relief; the towel exchange and toilet tissue claims were frivolous;
the seizure of wood-working materials claim should be dismissed without
prejudice for failure to exhaust administrative remedies; and the work termination
and false disciplinary charges claim was time-barred.
Mr. Rainey suggested throughout his district court pleadings that he
suffered from discrimination, harassment and retaliation, a conspiracy and
on-going violations of his constitutional rights. To the extent Mr. Rainey made
-3-
The district courts dismissal for failure to state a claim and our dismissal
of this frivolous appeal both count as strikes under 28 U.S.C. 1915(g). Thus,
Mr. Rainey has accumulated two strikes in this matter.
See Jennings v. Natrona
County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999).
-4-
Terrence L. OBrien
Circuit Judge
-5-